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|The Honourable Justice
|Chief Justice of South Africa|
8 September 2011
|Appointed by||President Jacob Zuma|
|Preceded by||Sandile Ngcobo|
|Justice of the Constitutional Court|
|Appointed by||President Jacob Zuma|
|Judge President of the North West High Court|
October 2002 – October 2009
|Judge of the North West High Court|
June 1997 – October 2009
|Appointed by||President Nelson Mandela|
14 January 1961 |
Zeerust, South Africa
|Alma mater||University of Zululand
University of Natal
University of South Africa
Mogoeng was born on 14 January 1961 in Goo-Mokgatha (Koffiekraal) village near Zeerust in the North West Province of South Africa. He received a B.Juris from the University of Zululand in 1983 and a Bachelor of Laws from the University of Natal in 1985. Thereafter he worked for the government of Bophuthatswana as a High Court prosecutor in Mafikeng. He obtained a Master of Laws by correspondence from the University of South Africa in 1989 and left Bophuthatswana's civil service the following year to begin practice as an advocate. After a short period at the Johannesburg bar, Mogoeng returned to Mafikeng, where he practiced for six years.
In 1997, Mogoeng was appointed a judge of the North West High Court. He became a judge of the Labour Appeal Court in 2000 and the Judge President of the Mafikeng High Court in 2002. In 2009, in President Jacob Zuma's first raft of judicial appointments, Mogoeng was elevated to the highest court in South Africa, its Constitutional Court.
Nomination as Chief Justice
Less than two years later, in mid-2011, Mogoeng was nominated for appointment as the Chief Justice. Mogoeng's nomination was extremely controversial, drawing strong criticism from right across the political spectrum, including from within Zuma's own Tripartite Alliance, as well as from the press, local and international civic organizations, legal academics and bar councils.
Mogoeng was one of the Constitutional Court's most junior members, having been appointed to it less than two years earlier, and having had a relatively short judicial career at one of the smallest High Court divisions prior to that. In addition, Mogoeng was nominated ahead of the expected appointee, Dikgang Moseneke, who had served the Constitutional Court for nine years and as Deputy Chief Justice for six. Moseneke had already been overlooked once before, when Sandile Ngcobo was appointed Chief Justice, and his second snubbing was attributed to his Pan Africanist Congress background and remarks at a social occasion distancing himself from the ruling African National Congress (ANC). Mogoeng's own meteoric rise under the Zuma administration raised concerns about his independence. His nomination ahead of Moseneke reminded many of the notorious supersession by L. C. Steyn, a National Party favourite, of Oliver Schreiner. Finally, whereas Moseneke had been active in the struggle against apartheid, Mogoeng had been a prosecutor for a bantustan.
Critics also pointed to Mogoeng's questionable track record during his time at the North West High Court. Besides his general lack of reported judgments, critics noted that he had failed to recuse himself in S v Dube, a case where his wife appeared as the state prosecutor.
But the most widespread and persistent concerns were about his judgments in rape and gender-violence cases. The Nobel Women's Initiative accused Mogoeng of invoking dangerous myths about rape and of victim-blaming. Of the many judgments cited by critics in which Mogoeng had been lenient on rapists and domestic assailants, three were emphasised:
- In State v Sebaeng Mogoeng reduced the sentence of a child rapist on the basis that he had been non-violent and indeed "tender" in raping the victim:
"One can safely assume that [the accused] must have been mindful of [the victim's] tender age and was thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop, notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and R30."
- The 2005 case of State v Moipolai involved the rape of a pregnant woman by her long-term boyfriend. Despite several aggravating factors, Mogoeng reduced the man's sentence from ten years' imprisonment to five because the rape was, he said, not as serious as if a stranger had committed it.
- Finally, in State v Mathebe, Mogoeng reduced the sentence, from two years' imprisonment to a fine of R4,000, of a man who had tied his girlfriend to his car and dragged her 50 meters along a dirt road. Mogoeng's explanation was that the man had been "provoked".
When these three judgments were raised in a BBC interview, Mogoeng compared his judgments in sexual-assault cases to a game of football, saying it would be wrong to call Manchester United a bad team because it loses three matches in a season. Criticism of Mogoeng extended beyond his attitudes to rape and sexual violence. Legal academic Pierre de Vos said Mogoeng was clearly the most conservative member of the Constitutional Court. He pointed to Mogoeng's ambivalence over gay rights - in Le Roux v Dey Mogoeng dissented, without giving reasons, from paragraphs which said it was not defamatory to call someone gay - and to his dissenting judgment in The Citizen v Robert McBride, which would severely restrict freedom of expression.
Interview and appointment
Moseneke, as the country's Acting Chief Justice pending a permanent appointment, chaired the Judicial Service Commission (JSC) when it interviewed Mogoeng to determine his suitability. Mogoeng seemed prickly throughout, having to apologize to Moseneke for lashing out at one of his questions. In response, one Commissioner told Mogoeng he seemed "arrogant" and unsuited to the position. Commentators said Mogoeng's conduct at the interview heightened concerns about his judicial temperament.
Nevertheless, Mogoeng's appointment was recommended by the JSC and confirmed by President Zuma on 8 September 2011. The JSC's decision to appoint Mogoeng, despite his many critics, coupled with the partisan conduct of the JSC's political appointees during his interview, suggested to some that the JSC had been captured by political interests.
Criticism of Mogoeng's suitability, and of his close ties with the Zuma administration, continued well after his appointment. But in his public addresses Chief Justice Mogoeng has regularly championed judicial independence and deplored interference by the executive. Mogoeng has also publicly criticised Minister of Justice Michael Masutha for failing to ensure that the judiciary is autonomous and adequately funded.
In 2012, Mogoeng upheld a constitutional challenge by Mario Oriani-Ambrosini, of the minority Inkatha Freedom Party, to rules of Parliament that allowed an individual MP to introduce a Bill only if he or she first obtained the majority's approval. Mogoeng also held against the government in the high-profile litigation in Helen Suzman Foundation v President. His majority judgment struck down several sections of the South African Police Service Amendment Act of 2012 (the so-called Hawks Act) on the basis that they did not constitute an "adequately independent" anti-corruption unit. (Other members of the Court would, however, have gone further, and struck down other sections which Mogoeng upheld.) Mogoeng's Court also found against the government in Democratic Alliance v President (per Yacoob ADCJ), setting aside President Zuma's highly controversial appointment of Menzi Simelane as National Director of Public Prosecutions. Finally, in October 2014 his Court handed down judgment in National Commissioner of the SAPS v SALC (per Majiedt AJ) and ordered the South African Police Service to investigate allegations of torture in Zimbabwe committed by and against Zimbabwean nationals. This judgment was hailed as a victory for universal jurisdiction. In its wake, one influential columnist said that those who had expected the Constitutional Court to take a pro-executive turn under Mogoeng had been proved wrong.
Sexual violence and conservatism
In F v Minister of Safety and Security Mogoeng strongly deplored sexual violence and held the state liable to compensate a young girl who had been raped by an off-duty policeman. And in 2013 he was praised for his "unexpected progressiveness" at the hearing of Teddy Bear Clinic v Minister of Justice, where his questions from the bench showed "he was clearly moved by the notion that consensual sexual behaviour between minors should not be criminalised". This judgment (per Khampepe J), together with those Mogoeng himself wrote after becoming Chief Justice, were said to show that his "jurisprudence has not been as conservative as some critics thought" it would be.
Head of the JSC
The Judicial Service Commission has attracted criticism under Mogoeng's stewardship, in part because of its attitude to the racial "transformation" of the judiciary. For example, the JSC was criticised for its "brutal" treatment of High Court judge Clive Plasket when he was interviewed for promotion to the Supreme Court of Appeal. Bellicose JSC members seemed to have selectively attacked Plasket - "improperly castigating" him, using him as a punch-bag "to release some pent-up frustration", and depicting him as racist despite his well-known anti-apartheid activism. He was ultimately not appointed, in favour of two candidates whom many South African lawyers regarded as obviously inferior. The JSC has repeatedly struggled to fill vacancies because insufficient candidates have applied; in the view of many, this is because few are willing to subject themselves to the selection process.
In April 2013 Izak Smuts, one of the JSC's senior members, resigned because of the its "disturbing" appointment record which "has left a trail of wasted forensic talent in its wake". He cited the examples of Plasket, Geoff Budlender, Azhar Cachalia, Jeremy Gauntlett and Willem van der Linde. Smuts also published a discussion document which criticised the JSC's overemphasis on race, and neglect of merit, which tacitly barred white males from appointment and turned JSC interviews into a "charade". In response, senior members of the JSC said that racial transformation was indeed "highest on the agenda", and that, since Smuts did not seem to agree, he "was correct" to resign.
Shortly after Smuts's resignation the Helen Suzman Foundation took the JSC to court over its allegedly "irrational" refusal to appoint certain candidates. An earlier decision of the JSC - taken in April 2011, shortly before Mogoeng became its head - had already been declared unlawful on this basis by the Supreme Court of Appeal. Soon after the Foundation's court application, Chief Justice Mogoeng gave a speech at an Advocates for Transformation event in which he said a "deliberate attempt is being made to delegitimize the JSC" through "scare tactics" and blamed this on "a well coordinated network of individuals and entities" - possibly apartheid agents, Mogoeng implied - "pretending to be working in isolation from each other". Mogoeng called on his audience to defend "genuine transformation" and oppose "this illegitimate neo-political campaign to have certain people appointed". This now "infamous" speech was criticised for departing from the requirements of judicial impartiality and seeming to betray a racial bias. Paul Hoffman SC sought to have Mogoeng impeached on the basis that he had brought the judiciary into disrepute, but this complaint was itself widely criticised as "ill-considered" and "weak on the law" and was dismissed by the Judicial Conduct Committee.
After the retirement of Justice Thembile Skweyiya in May 2014, Mogoeng stated that he wanted to appoint a female judge in his place. The vacancy was then left open for over a year, as a series of female acting appointments were made instead, apparently to provide a test run. This dilatoriness in making a permanent appointment was criticised by commentators, who said it was corrosive of judicial independence and inconsistent with the South African Constitution. The stated reason for the delay, namely the need to find competent female candidates, was said to be "patronising" and unconvincing. The JSC finally acted to fill the vacancy fourteen months after it arose.
Mogoeng is a lay preacher in the Pentecostal Winners' Chapel. He attributed the criticism over his nomination and appointment to his Christian faith. But in Mogoeng's view, stated at his JSC interview, God wanted him to be Chief Justice. Concern about Mogoeng's religious conservatism did not abate during his tenure. In March 2012 he was publicly criticised for requesting judges to attend a leadership conference hosted by Christian evangelist John C. Maxwell, raising concerns about the separation of church and judiciary. And in May 2014 he gave a speech at Stellenbosch University arguing that religion should infuse the law to a greater extent, "starting with the Constitution". He quoted liberally from the Bible, compared the three branches of government to the Holy Trinity and railed against social evils like "fornication". Mogoeng's speech sparked a media furore, in response to which he sought to offer clarification. The resulting press conference seemed to confirm rather than allay the media's fears. Mogoeng's religious convictions have also found their way into his judgments: in McBride, for example, he railed against the use of "foul language" and South Africa's "being denuded of moral standards", and cited the Bible.
|Chief Justice of South Africa
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- Chief Justice Mogoeng Mogoeng receives an honorary doctorate from the NWU .